Legal Question in Family Law in Minnesota

Re: Power of Attorney for son

I just received your note. More information is required to provide you with truly meaningful advice and assistance, but perhaps this will get you started, and will also provide some guidance to others who have similar concerns about the care of an adult child, parent or loved one.

First, there is a great deal of misunderstanding about the purpose and effect of a power of attorney. Simply stated, a power of attorney merely gives someone the right to make decisions on behalf of another. The person who receives the power of attorney (which we call the "attorney in fact"), can open a bank account in the name of the grantor, cash checks on his behalf, and sign a lease, for example, depending on how much authority the grantor has chosen to give the attorney in fact. The person giving the power of attorney can decide how much authority should be given to the attorney in fact.

A power of attorney is not a conservatorship, or a guardianship. It does not necessarily give the holder of the power (the "attorney in fact") responsibility for management of the other's affairs. The person who gives the power of attorney to another still has the right to conduct his or her own business and can still be responsible for his or her own affairs (presuming he is legally competent), even if he has given this authority to someone else. In order to give someone a power of attorney, the person giving the power must be legally competent. In other words, if the person who is asked to sign a power of attorney is suffering from a mental impairment, then he may not have the ability to give someone else authority to act on his behalf. This means that a power of attorney is not properly used to take care of someone who is already very ill, and may be incompetent. Instead, a power of attorney is often given to another in the expectation that sometime in the future the person giving the power of attorney may be unable to conduct his or her own affairs.

Second, it is up to your son, not his wife or a court, to determine whether he should have a power of attorney -- if, that is, he is still legally competent. If he is not legally competent, which is to say that he cannot understand the consequences of his actions, or has other intellectual problems, then he cannot give a power of attorney to another person. In that case, the question is whether a guardian should be appointed on his behalf, if there is some concern about his safety and well-being. That would require a legal proceeding, and involves many issues that are beyond the scope of this forum.

I suspect you are really inquiring whether a guardian should be appointed for your son. If he is incapable of caring for his physical needs, or worse, has significant mental impairments, a court action may be required to determine who should have responsibility for his care. Please contact my office if you require further assistance.